OCTOBER TERM, 1992
Syllabus
BATH IRON WORKS CORP. ET AL.
v. DIRECTOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT
No.91-871. Argued November 4, 1992-Decided January 12, 1993
Upon learning after he retired that he suffered from a
work-related hearing loss, respondent Brown, a former employee of
petitioner Bath Iron Works Corp., filed a timely claim for
disability benefits under the Longshore and Harbor Workers'
Compensation Act. In calculating Brown's benefits, the
Administrative Law Judge applied a hybrid of the compensation
systems set forth in §§ 8(c)(13) and 8(c)(23) of that Act, and the
Benefits Review Board affirmed. Rejecting the Board's reliance on §
8(c)(23), the Court of Appeals held that hearing loss claims,
whether filed by current workers or retirees, must be compensated
pursuant to § 8(c)(13). Under that section, a claimant who has
suffered a disabling injury of a kind specifically identified in a
schedule, including hearing loss, is entitled to certain benefits
regardless of whether his earning capacity had actually been
impaired. In contrast, the Courts of Appeals for the Fifth and
Eleventh Circuits have held that a retiree's claim for occupational
hearing loss should be compensated pursuant to § 8(c)(23). Under
that section, a retiree who suffers from an occupational disease
that did not become disabling until after retirement-one "which
does not immediately result in death or disability" in the words of
the Act-receives certain benefits based on the "time of injury,"
which is defined as the date on which the claimant becomes aware,
or reasonably should have been aware, of the relationship between
the employment, the disease, and the disability. In Brown's case,
as in most cases, § 8(c)(13) benefits would be more generous than §
8(c)(23) benefits.
Held: Claims for hearing loss, whether filed by current
workers or retirees, are claims for a scheduled injury and must be
compensated under § 8(c)(13), not § 8(c)(23). Respondent Director's
undisputed characterization of occupational hearing loss as a
condition that
does cause immediate disability must be
accepted. A worker who is exposed to excessive noise suffers the
injury of such loss, which, as a scheduled injury, is presumptively
disabling, simultaneously with that exposure. Thus, the loss cannot
be compensated under § 8(c)(23) as "an occupational disease which
does not immediately result in ... disability." In holding that
claims for occupational hearing loss should be compensated
pursu-
154
154 BATH IRON WORKS CORP.
v. DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS
ant to § 8(c)(23), the Eleventh and Fifth Circuits have
essentially read this key phrase out of the statute. To the extent
there is any unfairness in the statutory scheme in that employers
may be held liable for postretirement increases in hearing loss due
to aging, they can protect themselves by giving employees
audiograms at the time of retirement and thereby freezing the
amount of compensable hearing loss. A lone Senator's single passing
remark in the legislative history does not persuade this Court that
retirees' hearing loss claims should be compensated under §
8(c)(23). Pp. 163-166.
942 F.2d
811, affirmed.
STEVENS, J., delivered the opinion for a unanimous Court.
Kevin M. Gillis argued the cause for petitioners. With
him on the briefs was
Allan M. Muir.
Christopher J.
Wright argued the cause for the
federal respondent. With him on the brief were
Solicitor General
Starr, Deputy Solicitor General Mahoney, Allen H. Feldman,
Nathaniel 1.
Spiller, and
Elizabeth Hopkins. Ronald W
Lupton argued the cause and filed a brief for Ernest C. Brown,
respondent under this Court's Rule 12.4.
JUSTICE STEVENS delivered the opinion of the Court. Respondent
Ernest C. Brown, a former employee of petitioner Bath Iron Works
Corp., learned after he retired that he suffered from a
work-related hearing loss. The parties agree that under the
Longshore and Harbor Workers' Compensation Act (LHWCA or Act), 44
Stat. 1424, as amended, 33 U. S. C. § 901
et seq.,
respondent is entitled to disability benefits on account of his
injury. They disagree, however, as to the proper method of
calculating those benefits.
There are essentially three "systems" 1 for compensating
partially disabled workers under the Act, two of which are at issue
in this case. The "first" system provides for com-
1 The various methods for calculating benefits under the Act
were so labeled by the Court of Appeals, and the parties retain
that characterization in their briefs before this Court. We find
that characterization useful and adhere to it in our discussion of
the Act.
155
pensation for partially disabled claimants who have suffered
certain statutorily "scheduled" injuries, one of which is hearing
loss. The "third" system provides for compensation for retirees who
suffer from occupational diseases that do not become disabling
until after retirement. In most, but not all, cases, benefits for
scheduled injuries are more generous than those provided retirees
suffering from latent occupational diseases. The question presented
in this case is whether a claimant who discovers, after retirement,
that he suffers from a work-related hearing loss should be
compensated under the first system, because loss of hearing is a
scheduled injury, or under the third system, because he did not
become aware of the disabling condition until after retirement.
I
Prior to 1984, the LHWCA provided that compensation for a
permanent partial disability should be determined in one of two
ways. If the injury was of a kind specifically identified in the
schedule set forth in § 8(c) of the Act, 33 U. S. C. §§
908(c)(1)-(20) (1982 ed.), the injured employee was entitled to
two-thirds of his average weekly wage at the time of the injury for
a specific number of weeks, regardless of whether his earning
capacity had actually been impaired. See
Potomac Electric Power
Co. v.
Director, Office of Workers' Compensation
Programs, 449 U.
S. 268, 269-270 (1980).2 Loss of hearing was among those
specified injuries.3 In all other cases, the Act authorized
compensation equal to twothirds of the difference between the
employee's average
2 For example, workers who lose an arm are entitled to
two-thirds of their weekly pay for 312 weeks, 33 U. S. C. §
908(c)(1), whereas workers who lose a leg are entitled to such
compensation for 288 weeks, § 908(c)(2).
3 Section 8(c)(13), both before and after the LHWCA Amendments
of 1984, authorized compensation of two-thirds of the average
weekly wage for a period of 200 weeks for a total loss of hearing
in both ears. For a partial loss of hearing, the Act requires a
proportionate reduction in benefits. See n. 9,
infra.
156
weekly wage and his postinjury earning capacity. 33 U. S. C. §
908(c)(21). In those cases, unlike the scheduledinjury cases in
which disability was presumed, it was necessary for the employee to
prove that his injury had actually decreased his earning
capacity.4
In early 1984, the Benefits Review Board 5 was confronted with a
case in which the claimant had contracted asbestosis, a latent
occupational disease that did not manifest itself until after his
retirement. Because the disease did not qualify as a scheduled
benefit, the claimant was not entitled to a presumption of
disability; moreover, because it did not affect his actual
earnings, he could not establish "disability" as defined in §
902(10).6 Therefore, the Board held, the claimant was not entitled
to any compensation under the Act.
Aduddell v.
Owens-Corning Fiberglass, 16 BRBS 131, 134 (1984).7 Three
weeks after the
Aduddell decision, the Board followed
4 Prior to 1984, § 902(10) defined the term "disability" to mean
"incapacity because of injury to earn the wages which the employee
was receiving at the time of injury in the same or any other
employment." 33 U. S. C. § 902(10) (1982 ed.). An employee with a
scheduled injury, however, is presumed to be disabled, even though
the injury does not actually affect his earnings. As we held in
Potomac Electric Power Co. v.
Director, Office of
Workers' Compensation Programs, 449 U. S. 268 (1980),
such an employee is only entitled to the scheduled benefit even
when the actual impairment of his earnings would have produced a
higher benefit if calculated under §8(c)(21).
Id., at
270-271.
5 The Benefits Review Board was created by Congress to "hear and
determine appeals ... with respect to claims of employees under
[the Act]." 33 U. S. C. § 921(b)(3).
6 See n. 4,
supra.
7 See also
Worrell v.
Newport News Shipbuilding
&
Dry Dock Co., 16 BRBS 216 (1983) (Administrative Law
Judge (ALJ) decision denying death benefits where claimant who had
been exposed to asbestos developed and died from mesothelioma after
retirement);
Newport News Shipbuilding and Dry Dock v.
Director, Office of Workers' Compensation Programs,
681 F.2d
938, 942
(CA4 1982) ("Before retirement, the asbestosis
was not disabling; after retirement there was no diminished
capacity").
157
its reasoning in a case involving a hearing loss claim filed
after the claimant's retirement.
Redick v.
Bethlehem
Steel Corp., 16 BRBS 155 (1984). Although the ALJ in
Redick had made a finding of disability because "scheduled
awards are conclusive presumptions of loss of wage-earning capacity
and cannot be rebutted," id., at 156, the Board vacated the award
of benefits, reasoning that the "voluntary retirement was prior to
manifestation of the injury, and was unrelated to his hearing
loss," id., at 157.
In 1984, Congress amended the Act by adding the "third"
compensation system that unquestionably provides compensation for
the type of claim rejected in
Aduddell and the other
asbestos cases. With the 1984 amendments, Congress authorized the
payment of benefits to retirees suffering from occupational
diseases that become manifest only after retirement. More
precisely, a new § 10(i) addresses claims for death or disability
"due to an occupational disease which does not immediately result
in death or disability." 33 U. S. C. § 910(i).
As is the case under the first two compensation systems,
compensation under the third system turns in large part on the
"average weekly wage" used to calculate benefits. When the "time of
injury"-defined as "the date on which the employee or claimant
becomes aware, or ... should have been aware, of the relationship
between the employment, the disease, and the death or disability,"
ibid.-is within the first year of retirement, the claimant's
average weekly wage is based upon the claimant's wages just prior
to retirement. § 910(d)(2)(A). When the "time of injury" is more
than one year after retirement, the average weekly wage is deemed
to be the national average weekly wage at that time. §
910(d)(2)(B).
Once the "average weekly wage" is determined, a claimant's
benefits are calculated under § 8 of the Act. For claims
158
in which "the average weekly wages are determined under section
910(d)(2)," that is, for retirees with claims involving "an
occupational disease which does not immediately result in death or
disability," 33 U. s. C. § 910(i), a new § 8(c)(23) provides that
compensation shall be two-thirds of the applicable average weekly
wage multiplied by the percentage of permanent impairment as
determined by particular medical guides specified in the statute,
33 U. s. C. § 908(c)(23). The claimant is entitled to such benefits
for the duration of the impairment.
Ibid.8
8 Piecing all these various provisions together, § 8(c), 33 U.
S. C. § 908(c), provides:
"Permanent partial disability: In case of disability partial in
character but permanent in quality the compensation shall be 662/3
per centum of the average weekly wages, ... and shall be paid to
the employee, as follows:
"(13) Loss of Hearing:
"(B) Compensation for loss of hearing in both ears, two-hundred
weeks.
"(21) Other cases: In all other cases in the class of
disability, the compensation shall be 662/3 per centum of the
difference between the average weekly wages of the employee and the
employee's wage-earning capacity thereafter in the same employment
or otherwise, payable during the continuance of partial
disability.
"(23) Notwithstanding paragraphs (1) through (22), with respect
to a claim for permanent partial disability for which the average
weekly wages are determined under section 910(d)(2) of this title,
the compensation shall be 662/3 per centum of such average weekly
wages multiplied by the percentage of permanent impairment, as
determined under the guides referred to in section 902(10) of this
title, payable during the continuance of such impairment."
Section Wed), 33 u. S. C. § 910(d), provides:
"(2) Notwithstanding paragraph (1), with respect to any claim
based on a death or disability due to an occupational disease for
which the time of injury (as determined under subsection (i) of
this section) occurs-
"(A) within the first year after the employee has retired, the
average weekly wages shall be one fifty-second part of his average
annual earnings during the 52-week period preceding retirement;
or
159
The differences between the first and third compensation systems
can result in significantly differing benefits. An award to a
claimant under the schedule, i.
e., the first system, is
based upon the degree of loss to the scheduled body part, whereas
an award under the third system is based on the extent to which the
"whole body" has been impaired. In most cases, this difference
makes recovery under the schedule more generous than that under the
retiree provisions.9
II
Respondent was exposed to loud noise during his employment as a
riveter and chipper at petitioner's iron works from 1939 until
1947, and again from 1950 until his retirement in 1972. In 1985 he
received the results of an audiogram indicating an 82.4 percent
loss of hearing. As authorized by a
"(B) more than one year after the employee has retired, the
average weekly wage shall be deemed to be the national average
weekly wage ... applicable at the time of the injury."
Section lOCi), 33 U. S. C. § 910(i), provides:
"For purposes of this section with respect to a claim for
compensation for death or disability due to an occupational disease
which does not immediately result in death or disability, the time
of injury shall be deemed to be the date on which the employee or
claimant becomes aware, or in the exercise of reasonable diligence
or by reason of medical ad vice should have been aware, of the
relationship between the employment, the disease, and the death or
disability."
9 For example, because respondent's hearing loss is partial
(82.4 percent), see
infra this page, his recovery under the
schedule would be reduced from two-thirds of his average weekly
wage for 200 weeks to the same amount for 165 weeks (200 weeks
times .824 equals 165 weeks). See 33 U. S. C. § 908(c)(19). Under
the guides referenced in § 8(c)(23), however, an 82.4 percent
hearing loss translates into a 29 percent impairment of the "whole
person." Thus, under the third system respondent would only receive
29 percent of two-thirds of the appropriate average weekly
wage.
There are some aspects of the third system, however, that may
provide for more favorable treatment to claimants. For instance,
benefits calculated pursuant to the third system are paid weekly
for as long as the claimant is impaired, whereas benefits for a
scheduled injury continue only for a specified number of weeks.
160
provision in the 1984 amendments that is not at issue in this
case,10 he then filed a timely claim for benefits.
The ALJ, following Board precedent, applied a hybrid of the
first and third compensation systems to calculate respondent's
benefits. The ALJ concluded that respondent's hearing loss fell
within the scope of the 1984 amendments as an occupational disease
that does not immediately result in disability and that the
relevant "time of injury" was the date in September 1985 when
respondent received his audiogram and became aware of his hearing
loss. Accordingly, the ALJ identified the national average weekly
wage in September 1985 as the relevant average weekly wage. At that
point, however, the ALJ departed from the third system; instead of
applying the formula in § 8(c)(23) applicable to claims for latent
occupational diseases, he turned to the first system, the schedule
in § 8(c)(13), to calculate respondent's weekly benefit.
Respondent's benefits were thus limited to a precise number of
weeks, as opposed to continuing throughout the duration of his
disability as would be required under § 8(c)(23). Yet, because of
the differing formulas used in §§ 8(c)(23) and 8(c)(13), the amount
of each weekly benefit was higher than it would have been had
respondent's benefit been calculated under § 8(c)(23).11 The
Benefits Review Board affirmed on the same rationale.
On appeal, petitioners (the employer and its insurance carrier)
agreed with the ALJ and the Board that respondent suffers from a
latent occupational disease within the meaning of § 10(i), but
argued that the ALJ and the Board erred in
10 Title 33 U. S. C. § 908(c)(13)(D) provides:
"The time for filing a notice of injury, under section 912 of
this title, or a claim for compensation, under section 913 of this
title, shall not begin to run in connection with any claim for loss
of hearing under this section, until the employee has received an
audiogram, with the accompanying report thereon, which indicates
that the employee has suffered a loss of hearing."
11 See n. 9, supra, and accompanying text.
161
failing to apply the benefit formula in § 8(c)(23) appropriate
to such claims. While petitioners challenged the method of
computing the benefit, they did not contest the use of 82.4 percent
as the measure of Brown's hearing loss, even though the record
contains persuasive evidence that a portion of that loss is
attributable to the aging process after his retirement.
The Director of the Department of Labor's Office of Workers'
Compensation Programs challenged the ALJ's and the Board's
reasoning on different grounds. The error they made, the Director
argued, was in looking to the third compensation system at all, for
hearing loss is not an occupational disease that "does not
immediately result in death or disability." 33 U. S. C. § 910(i).
Relying on undisputed scientific evidence, the Director argued that
work-related hearing loss, unlike a disease such as asbestosis,
does cause immediate disability:
"[D]eafness is an injury that a worker typically suffers
before retirement. After retirement a worker's
workplace-noise-induced deafness will not ordinarily grow worse; if
anything it will get better. See R. T. Sataloff & J. Sataloff,
Occupational Hearing Loss 357 (1987). Moreover, unlike
asbestosis, the symptoms of deafness occur simultaneously with the
'disease.' In other words, to say that a worker is '84.4% deaf' is
to say that he has lost 84.4% of his hearing. If he does not notice
his deafness, and does not file a claim until long after
retirement, that fact does not mean he is not deaf; it does not
mean he has no deafness symptom; rather, it means he may have grown
accustomed to his deafness, which is quite a different matter."
942 F.2d
811, 816 (CA1 1991) (summarizing Director's argument).
Accepting the Director's undisputed characterization of
occupational hearing loss, the Court of Appeals held that
respondent's disability was not "due to an occupational disease
which does not immediately result in ... disability," 33
162
u. S. C. § 910(i), and that therefore his claim did not fall
within the third compensation system. "[U]sing ordinary English,"
the court noted, "one would normally say that deafness is a disease
that causes its symptoms, namely loss of hearing,
simultaneously
with its occurrence. One simply cannot say that a person
suffering from deafness is not deaf-whether or not he notices how
deaf he is." 942 F. 2d, at 817 (emphasis added). Having ruled out
application of the third compensation system, the court found that
respondent's claim fell squarely within the first system, which
draws no distinction between retired and working claimants and
expressly provides for compensation for work-related hearing loss.
The court thus affirmed the Board's result-application of the
benefit calculation formula for scheduled injuries in §
8(c)(13)-but rejected its reliance on the third compensation system
for latent occupational diseases.12
The Courts of Appeals for the Fifth and Eleventh Circuits have
reached the opposite conclusion. While both courts have agreed with
the court below in rejecting the Board's "hybrid" approach, they
have both held, in contrast to the decision below, that a retiree's
claim for occupational hearing loss is "a claim for compensation
for ... disability due to an occupational disease which does not
immediately result in ... disability," 33 U. S. C. § 910(i), and
therefore should be compensated under the retiree provisions
enacted in 1984. See
Ingalls Shipbuilding v.
Director,
Office of Workers' Compensation Programs, 898
F.2d 1088 (CA5 1990);
Alabama Dry Dock and Shipbuilding
Corp. v.
Sowell, 933 F. 2d
12 The Board did not
fully apply the benefit calculation
for scheduled injuries. Instead of using the average weekly wage at
the time respondent was injured, it used the national average
weekly wage in September 1985, the average weekly wage that would
be appropriate had respondent in fact suffered from "an
occupational disease which does not immediately result in death or
disability." 33 U. S. C. § 91O(i). See supra, at 160. Petitioners
did not raise the issue below and the Court of Appeals considered
it waived. 942 F. 2d, at 819. We do as well.
163
1561 (CA111991). We granted certiorari to resolve the conflict.
503 U. S. 935 (1992). We now affirm.
III
Petitioners do not dispute the Director's or the lower court's
characterization of occupational hearing loss, and we find no basis
for doing so ourselves. Once we accept that characterization, it
follows that the retiree provisions enacted in 1984-the so-called
"third" compensation systemdo not apply to claims for occupational
hearing loss. Occupational hearing loss, unlike a long-latency
disease such as asbestosis, is not an occupational disease that
does not "immediately result in ... disability." 33 U. S. C. §
910(i). Whereas a worker who has been exposed to harmful levels of
asbestos suffers no injury until the disease manifests itself years
later, a worker who is exposed to excessive noise suffers the
injury of loss of hearing, which, as a scheduled injury, is
presumptively disabling, simultaneously with that exposure. Because
occupational hearing loss
does result in immediate
disability, the plain language of § 10(i) leads to the conclusion
that a retiree's claim for occupational hearing loss does not fall
within the class of claims covered by the third compensation
system.
The Courts of Appeals for the Fifth and Eleventh Circuits
recognized the crucial distinction between occupational hearing
loss and latent diseases such as asbestosis, but nonetheless
concluded that Congress, in enacting the third compensation system,
did not intend to distinguish between the different types of
occupational diseases suffered by retirees. In particular, these
courts were concerned that if a retiree's claim for occupational
hearing loss was not deemed to be a claim with respect to "an
occupational disease which does not immediately result in ...
disability," then the Act would be silent as to the appropriate
"time of injury" for such a claim. That is, if the "time of injury"
for a retiree's claim of occupational hearing loss is not "the date
on which the em-
164
ployee or claimant becomes aware, or ... should have been aware,
of the relationship between the employment, the disease, and the
death or disability," then when is it? 13 To the Director's
response that in the case of occupational hearing loss the time of
injury is the date on which the disabling condition is complete,
that is, the date of last exposure to the workplace noise, both
courts found that the "date of last exposure" rule had been
rejected by other courts and by Congress and therefore should not
be resurrected absent some indication of congressional intent to do
so.
Ingalls, 898 F. 2d, at 1093-1094;
Sowell, 933 F.
2d, at 1566-1567.
We do not find the reasoning of these courts persuasive for two
reasons. First, the statute provides that the retiree provisions
apply not to every occupational disease, but just to an
occupational disease
"which does not immediately result in ...
disability." 33 U. S. C. § 910(i) (emphasis added). Asbestosis
is such a disease; hearing loss is not. In ignoring the fact that
occupational hearing loss
does immediately result in
disability, the Courts of Appeals for the Fifth and Eleventh
Circuits have essentially read that key phrase out of the statute.
Congress certainly could have enacted a compensation system that
treated retirees differently from current workers in
all
cases, regardless of the nature of the particular occupational
disease from which they suffered. As we read the statute, however,
that is not the path Congress took.
Second, while it is true that prior to the 1984 amendments some
courts had rejected fixing the time of injury, and thus the
applicable average weekly wage, as the date of last exposure to the
harmful substance, those cases involved longlatency diseases such
as asbestosis. See,
e. g., Todd Ship-
13 As explained above, the average weekly wage used to calculate
benefits under the Act is the wage that the claimant was receiving
at the time of injury. Thus, in order to calculate benefits under
the Act, one must be able to identify the appropriate time of
injury.
165
yards Corp. v.
Black, 717 F.2d
1280 (CA9 1983). In such cases, using the date of last exposure
as the relevant time of injury was deemed inappropriate because,
according to ordinary understanding, a worker is not injured at
that time; the injury arises years later when the disease manifests
itself.
Id., at 1290 ("The average person ... would not
consider himself 'injured' merely because the [asbestos] fibers
were embedded in his lung"). For the reasons explained above, the
same cannot be said about occupational hearing loss. The injury,
loss of hearing, occurs simultaneously with the exposure to
excessive noise. Moreover, the injury is complete when the exposure
ceases. Under those circumstances, we think it quite proper to say
that the date of last exposure-the date upon which the injury is
complete-is the relevant time of injury for calculating a retiree's
benefits for occupational hearing loss.
Nor are we persuaded by petitioners' arguments as to why retiree
claims for occupational hearing loss should be compensated pursuant
to the third compensation system. Petitioners correctly point out
that even though the portion of a retiree's hearing loss that is
attributable to his occupation may remain constant after
retirement, the aging process may cause it to worsen during
retirement. In our view, however, this is a matter that is relevant
to the computation of the amount of the benefit-a matter that is
not in dispute in this case 14-rather than to the retiree's
eligibility for a scheduled benefit. To the extent there is any
unfairness in the statutory scheme in that employers may be liable
for hearing loss attributable to aging, employers can protect
themselves by providing their employees with an audiogram at the
time of retirement and thereby freezing the amount of compensable
hearing loss attributable to the claimant's employment.
14 See supra, at 161.
166
Petitioners also point out, again correctly, that during debate
on the 1984 amendments a Senator made a passing reference to the
Redick case and suggested that the House and Senate
conferees disagreed with the Board's decision in that case. 130
Congo Rec. 26300 (1984) (statement of Sen. Hatch). Because that was
a hearing loss case, they infer that the retiree provisions of the
amendment should be construed to apply to such cases. In addition
to the fact that the conclusion does not necessarily follow from
the premise, we reject the argument for two reasons, each of which
is sufficient. First, when carefully read, we find the text of the
statute unambiguous on the point at issue; accordingly, we give no
weight to a single reference by a single Senator during floor
debate in the Senate. Second, as part of the 1984 amendments,
Congress amended § 8(c)(13) to preserve the timeliness of hearing
loss claims filed more than a year after the employee's last
exposure.15 It accomplished that purpose not by postponing the time
of injury until the date of awareness, but, on the contrary, by
providing that the "time for filing a ... claim for compensation
... shall not begin to run in connection with any claim for loss of
hearing under this section ... until the employee has received an
audiogram ... " 33 U. S. C. § 908(c)(13)(D). Thus, Congress
responded to its concern about latent diseases that are not
scheduled and cause no loss of earnings by enacting the
interrelated provisions constituting the "third" compensation
system, whereas it responded to a concern about hearing loss claims
by amending § 8(c)(13).
IV
For the reasons given, we hold, as did the court below, that
claims for hearing loss, whether filed by current workers or
retirees, are claims for a scheduled injury and must be
15 See n. 10, supra.
167
compensated pursuant to § 8(c)(13) of the LHWCA, not §
8(c)(23).16
The judgment of the Court of Appeals, accordingly, is
affirmed.
It is so ordered.
16 In so holding, we reject respondent employee's arguments in
support of the Board's hybrid approach. There is simply no basis in
the statute for combining the compensation provisions applicable
for retirees suffering from latent occupational diseases with those
governing claimants with scheduled injuries. We note that even the
Board has now receded from that interpretation of the Act. See
Harms v.
Stevedoring Services of America, 25 BRBS
375, 382 (1992) ("Where claimant is a retiree and Section lOCi)
applies, the plain language of the statute renders the provisions
of Section[s] 8(c)(1)-(22), including Section 8(c)(13),
inapplicable").
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